The Parameters of Constitutional Conflict after Melloni

European Law Review Forthcoming

26 Pages Posted: 30 Jun 2014 Last revised: 1 Jul 2014

See all articles by Leonard F. M. Besselink

Leonard F. M. Besselink

University of Amsterdam - Amsterdam Centre for European Law and Governance

Date Written: April 25, 2014

Abstract

The judgment of the Court of Justice of the EU in Melloni makes clear that primacy of EU law is not about citizens’ rights: even the core of their constitutional rights under national law has to be set aside in favour of the “primacy, unity and effectiveness” of EU law. Melloni extends the duty to set aside citizens’ constitutional rights also to EU law that is not directly effective. The Court finds it acceptable that a Framework Decision that “harmonizes” fundamental rights and falls short of constitutional standards of a Member State must override constitutional rights if that EU act lives up to minimum standards of the ECHR in abstract terms. This reopens a path to constitutional conflict in the area of fundamental rights protection that was expected to be closed since the entry into force of the Lisbon Treaty. The Court’s reasoning shows few signs of authentic “constitutional dialogue”, as witnessed by ignoring the fact that Melloni involved the core of a constitutional right under Spanish constitutional law affecting human dignity. Melloni also once again illustrates that constitutional conflict is not merely matter between a Member State and the Court of Justice, but may exist also between Member State courts and executives, thus making the Court of Justice an arbiter of national constitutional conflict. The Spanish Constitutional Court, in its follow-up judgment, has refused to accept both the constitutional supremacy of EU law and, by implication, the Court of Justice’s unreserved position on Article 53 of the Charter, but managed to avoid actual and overt constitutional conflict by an overall lowering of its autonomous fundamental rights standard. Such practical backing off can hardly be expected to occur with constitutional courts with nationally stronger positions of legitimacy. In more general constitutional terms, Melloni can be understood in the context of competing paradigms of rights, power and the relations between constitutional orders.

Suggested Citation

Besselink, Leonard F. M., The Parameters of Constitutional Conflict after Melloni (April 25, 2014). European Law Review Forthcoming . Available at SSRN: https://ssrn.com/abstract=2345143

Leonard F. M. Besselink (Contact Author)

University of Amsterdam - Amsterdam Centre for European Law and Governance ( email )

P.O.Box 1030
Amsterdam, 1000 BA
Netherlands

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